Under the ICTY statute, the Appeals Chamber has the authority to consider only appeals which refer to error of law or fact, said the team led by Luka Misetic.

The Appeals Chamber on July 20 asked the prosecution to explain by August 10 whether it believes that the two generals might be held responsible on the basis of superior responsibility or as aiders and abettors in the event that they are not found liable for unlawful artillery attacks or are not be found to be members of a joint criminal enterprise.

The tribunal has still not published the filing.

Gotovina's defence said the Appeals Chamber would be competent for alternative modes of liability only if one of the parties appealed the trial chamber's decision not to rule on alternative liability.

Such an appeal was not filed, the defence said, adding that in its decision, the trial chamber explicitly stated that it would not rule on alternative modes of liability because it had found that the two generals were accountable as members of a joint criminal enterprise.

Since the prosecution did not appeal, that finding is final, Gotovina's defence said.

Attorney Jadranka Slokovic told Hina the team was completely right in claiming that the finding was final because no appeal was filed and such a procedure would undermine its client's rights.

In its brief, Gotovina's defence cited precedents at the ICTY, the International Criminal Court, the European Court of Human Rights, and the International Criminal Tribunal for Rwanda.

It said appellate proceedings were not retrials and that only matters stated in the appeals could be considered, adding that alternative modes of liability were not contained in the appeals in this case.

The defence said that if the Appeals Chamber considered alternative modes of liability, it would bring into question the convict's rights in the appellate proceedings, as the Appeals Chamber, by adopting a decision on the two generals' alternative liability, would put itself in the function of a trial chamber, which would deprive the generals of the right to appeal.

Therefore, the Appeals Chamber should find that it is not competent for the matter of the two generals' alternative modes of liability, and that the trial chamber's decision not to rule on alternative liability is final and that it cannot be appealed because the prosecution failed to do so within the deadlines envisaged, Gotovina's defence said.

Croatian general Mladen Markac's attorney before the Hague war crimes tribunal, Goran Mikulicic, said on Friday Markac's defence team had joined a brief filed by general Gotovina's defence team.

The brief is now a joint filing, Mikulicic said.